Friday, 12 February 2016

As I mentioned briefly on Twitter, I had a visit yesterday from High Court bailiffs with a writ to seize goods on behalf of council chief executive Mark James. This action is in relation to the damages, plus interest, arising from Mr James' unlawfully funded counterclaim.
Mr James also has a legal charge over my home.
All instalment offers have been rejected.

I am not certain what will happen next as the bailiffs' visit was not fruitful. I am currently seeking advice.

Further details, and my views, can be found in earlier posts, some of which are listed on the sidebar of the blog.

32 comments:

Sian Caiach
said...

At the time of the counterclaim against you, it was explained to us lesser Councillors,by executive board members, as a ruse agreed by the exec board to get you to drop your original libel action.They knew that a Council could not legally counter sue for libel but an individual could, and also presumed, wrongly, that they were free to use public money to fund that individual.Mr James'case was financed by the council, and afterwards the funding was judged to be unlawful. Also unlawful was the "pension payment" also endorsed by the exec board by which Mr James a sum even greater than the damages he has "won" from you using public money. Was this really more about harassing you as a "troublesome" blogger by forcing the matter into court rather than settling the case out of court as you were happy to do before CCC's counter claim using Mr James as a proxy?

To me, at the time,the most chilling thing was the Plaid/Indy/Labour cross party support for "having a go"at you. The Council, with our money, has access to the best legal teams which cannot be matched by people of very limited means, like yourself.I went up to London and saw CCC's impressive barrister, Mr Speker, very professionally attack your young and inexperienced counsel using very clever ploys and impressive technique. In my opinion it wasn't anywhere near a fair fight. The County Council were badly advised on the whole affair in my view. Politicians have to take criticism all the time and should be used to it.Using Mr James as a proxy to counter sue for libel was wrong. The Wales Audit Office have ruled it as unlawful and although the current council Leader, Cllr Dole, does not agree with the WAO, I certainly do.

I don't agree with everything you say in your blog Jacqui, but I strongly defend your right to say it.

I am deeply ashamed know that the local authority of which i am a member has acted in this way and am more than disappointed to see that Mr James is demanding money from you as a result of a court case we Councillors should not have approved and financed

As someone who also attended your trial, I absolutely agree with Cllr Caiach's comments. And I find it very difficult to understand why this action has been taken now, at this stage, after all this time.

Whatever the background to the matter, in my view, the decent thing to do in these circumstances would be not to pursue such punitive action, and to be satisified with the legal victory. I am sure that the majority of people would agree, and will sympathise with you.

Hear hear. Such a travesty. Let us all remember how we have come to the stage where Jacqui could literally lose her home. As a very publicly spirited person she wanted council meetings broadcast in order that the public would have easy access to them. As a blogger who shows a great interest in local politics, she felt strongly that everyone who could not attend council meetings because of work or other commitments, should be able to watch them. She was arrested for filming one of them on her mobile phone and for that she was wrongly arrested. The rest is history. It developed into something of a vendetta by the CEO as everyone knows in Carmarthen who has followed this story. You cross him at your peril. This is the result. It is shameful that a man whose salary probably exceeds the value of her home is attempting to take it from her. She should be applauded for the work she has done, as it down to Jacqui that we now have council meetings broadcast by the council itself, and now everyone can watch these meetings from the comfort of their home. Jacqui achieved this for the public and should be commended for it, not have to lose her home for it.

Whilst I have every sympathy with your predicament, would you not be in the same position as you are now if Mr James had paid for his own action?

That being so, surely your dispute is in relation to the legal decision, and not whether Mr James's action was illegally funded by the Council, unless you are implying that he would not have pursued the action if he had not been so funded.

Anon 21:25 My dispute relates to both decisions. The arguments put forward to the Court of Appeal on my behalf detail the reasons why I dispute the legal decision. Included within the arguments was that the illegality of the counterclaim funding was intertwined with the meaning of the words complained of.

Crucially, Mr James did not fund the action himself. The decision by the executive to fund Mr James was unlawful. The final consequence of that decision, a decision that the executive had no power to take, is therefore void. Essentially the decision should be challenged via a belated Judicial Review but in my view the ultra vires/unlawful issue stands alone as an arguable defence to the continuing consequences of this case.

Crane v Director of Public Prosecutions [1921]:

'If an order is void ab initio (from the beginning) then there is no real order of the Court'.

Lord Denning Lazarus Estates Ltd -v- Beasley; CA 1956

‘No Court in this land will allow a person to keep an advantage he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever.

Lord Denning in MacFoy v United Africa Co. Ltd. [1961]

"A void order is incurably void and all proceedings based on the invalid claim or void act are also void. Even a decision of the higher Courts (High Court, Court of Appeal and Supreme Court) will be void if the decision is founded on an invalid claim or void act, because something cannot be founded on nothing"

Boddington v. British Transport Police 1998

'Lord Diplock expressed views about the legal status of the statutory instrument in question. He made it clear that the courts could "declare it to be invalid" if satisfied that the Minister acted outwith his powers conferred by the primary legislation, whether the order was "ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects):" [1975] A.C. 295, 365. He then said:

"Under our legal system, however, the courts as the judicial arm of Government do not act on their own initiative. Their jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter partes either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus standi to initiate proceedings to challenge the validity of the instrument.

Unless there is such challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed.

It would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of Government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings (cf. Ridge v. Baldwin[1964] A.C. 40)...

Thus, Lord Diplock confirmed that once it was established that a statutory instrument was ultra vires, it would be treated as never having had any legal effect. That consequence follows from application of the ultra vires principle, as a control on abuse of power; or, equally acceptably in my judgment, it may be held that maintenance of the rule of law compels this conclusion.'

Why has Mark James chosen now to kick you when your down? He is not short of money so it can only be that he believes himself untouchable and has the protection of God knows who in the Welsh Assembly Gov maybe. I find it strange how this LA can get away with the dirty tricks it does against the public interest. What he has set in motion by calling in the enforcement officers is only proving what a vindictive, spiteful and small minded man he really is. He refuses to listen to whistleblowers and allows his officers to act against the public interest and the safety of service users. He ignores complainants who approach him.

Jacqui I was so relieved when I saw you had a new post. I believe what you have put in your comment to be right because of the unlawful funding the whole thing should be made null and void. But justice favours the rich who can afford it but not the ordinary person who cannot afford to pay for representation. Who knows maybe Mark James thought you might be saving up to have the judgement/case looked at again now that it has been confirmed by the WAO his funding was illegal/fraudulent so moved to crush you before anything could get off the ground; who really knows how his mind works? I'll take time and study your comment in more depth and Sian Caiach's. Keep strong I am thinking of you and your family and wish you all the best.

Very interesting indeed. I do not believe for one moment, that if the taxpayer hadn't funded MJs vindictive actions that he would have gambled his own money. It wasn't his money to use in this way, therefore he shouldn't benefit from the ill gotten gains of these unlawful payments. It isn't right on many levels. He should do the decent thing and be satisfied with his victory as Mrs Angry has said, not go for the kill. This behaviour however, does expose a personality.

Back in February 2014 Carmarthenshire County Council held an extraordinary meeting to discuss the two public interest reports published by the Wales Audit Office which found both the libel indemnity and the chief executive's pension arrangements to be unlawful. The result of that meeting was a fudge, with the council disputing the WAO's findings but backing down nonetheless.

Whatever your point of view, the reputation of Carmarthenshire County Council had been severely damaged and its standing in the eyes of the public was at rock bottom.

The then leader of the council, Kevin Madge (Lab), repeatedly expressed the hope that a line could be drawn under the whole saga, but anyone with even a passing understanding of what had brought the council to this low point knew that Cllr Madge was, as so often, deluded. The legality of the libel indemnity and the pension scheme remain in legal limbo, with the council still officially disputing the WAO's findings. Meanwhile, two time bombs have continued to tick away. Would Mark James enforce his claim on Jacqui's home, and if so when? And what will happen to the much larger sums of money involved in the award of costs against Jacqui? Will the council write off the sums involved, or will it seek a separate action to try to recover its costs - an action which would surely fail because whatever the courts decide, there is no money for the council to recover. That decision cannot be deferred indefinitely.

The libel and pension scandals remain a huge stain on the reputation of the council, and responsibility for both lies fairly and squarely with Mark James. No matter how much councillors hope the whole thing will go away, more is yet to come, as we saw this week.

The libel case was sparked by Jacqui's decision to film a few minutes of a public meeting of the council using a mobile phone. It should never have been allowed to escalate into an arrest and a libel case, and again the responsibility for that disastrous course of action lies squarely with Mark James.

Anyone who has observed Mr James in action during the last couple of years will have been reminded of Talleyrand's famous description of the Bourbons: "They learned nothing and forgot nothing".

Recently a heated and embarrassing row broke out with members of the public come to exercise their right to ask questions at a meeting of the county council. Mr James's whispered advice to the chair was that he had the right to refuse questions from people who had taken time off work and travelled to County Hall to be heard.

Confrontational advice which if heeded would have made a bad situation even worse and resulted in more damage to the council's standing in the eyes of the public.

Fortunately, for once, his advice was ignored.

Incredibly, there are still councillors who think Mark James is the best thing since sliced bread. Let's hope that wiser heads prevail, and the chief executive can be persuaded to desist from a course of action which will inflict yet more damage on our council.

All those councillors, who supported and voted for the council to provide money for this man's counter claim,are completely responsible.Mark James has the whole council in an iron grip but it is no excuse for any councillors to meekly submit to someone with a personality such as hisIt is unbelievable that he benefits from council money obtained from public taxes.Defence case maybe but certainly not counter-suing.Any other person would have their conscience pricked,return the money to the council and be satisfied with having won the libel claim.He is a man hell-bent on control.Unbelievable that councillors still feel helpless.It has just dawned on me that as he is an employee he might take them on in the high court.

Please can someone start a crowdfunding site for this? If they did (I don't know how) I will pledge £100. It would take only 250 of us all over the country who abhor this sort of thing to stick it up Mr James's .... and free Jacquie from his tyranny.

@Redhead This is a really kind gesture Redhead and is hugely appreciated but I could not accept any sort of fundraising, it is not right, and I remain determined to carry on fighting this in any way I can, whatever happens.

Pressure should be exerted on this CEO by councillors to drop his vindictive behaviour - do the moral thing and leave this family to get on with their lives. Its disgraceful conduct given that it wasn't his money to counter sue it was taxpayers money.

Councillors must act together to redress the wrong done to Jaqui.How can Mark James be justified in accepting all that money when it had been possible to avoid court altogether.A man without a conscience.

It is rare for me to agree with Jennifer Brown , in fact I have never agreed with her, in the work situation or indeed on anything she has written on this site. However, on this occasion I am in total agreement. Mark James is a nasty spiteful man and this action confirms it!

I believe there has been some dispute in Carmarthenshire over the use of prayer before council meetings.

Here in Barnet we have the Mayor's chaplain giving a short sermon and prayer before Full Council. To be frank, it is generally the only contribution of any intellectual rigour, moral content, or sympathy for the plight of those in need.

Unfortunately, our elected members and senior officers bow their heads sanctimoniously, and pretend to listen, then carry on regardless.

Perhaps in your Town Hall, however, one might suggest something along these themes:

'Forgive us our trespasses, as we forgive those who trespass against us': or -

Labour refused to give him his payout- that's why they had to go. Crucially he can do his because he wasn't technically funded by the council, he was indemnified. Look in the dictionary for the difference. His counter claim would have been unlawfully funded if he had lost, but because he won, the indemnity didn't kick in. Arguing that he wouldn't have taken the counter claim forward without an indemnity doesn't work because there's no proof. I don't like it, but that's the law, and jaqui's lawyers should have informed her of that and the risk of consequences of a judgement losing her insurance. He best advice sometimes is: don't sue.

Anon 22:08 I'm glad your supporting Jacqui and appreciate what she does to keep us all informed. I also appreciate the platform she provides for her readers to air their views and concerns. Unless you have, like me and several other whistleblowers, raised concerns that are not properly acted on, you'll not appreciate the frustration we all felt. That is why we complained about the way POVA handled our disclosures and managements failure to follow the whistleblowing policy. You have a right to state your opinion concerning my comments just as I have a right to whistleblow. Free speech is the right Mark James has tried to prevent Jacqui having.

Anon 19:34 Whichever definition you use, the money was paid out, and it was unlawful. As for the case itself, I can't go into the ins and outs of eighteen months of complex litigation here but it was not entered into lightly either by me, or my lawyers.

I can understand why Jennifer Brown wants to ponder the mind of Mark James, but my feeling is that such a tortuous task is best left to a qualified psychiatrist. I suspect that even an expert in the field would find it challenging. As to the legal issue, I haven’t followed all the twists and turns of the case, nor read the judgments in full, but surely something more could be done. It seems to me there are important constitutional principles at stake which seem not to have been given the prominence in the proceedings that they deserve. I suspect, if more eminent judges, such as Lord Denning, had adjudicated the matter they would have been less myopic in their deliberations than the High Court judges seem to have been. I can understand why Jacqui seeks further judicial review, but the issue is well out of time and I don’t see why a second time around the High Court would take a different view than it did in the first instance. I feel that this case should have gone to the Court of Appeal and then to the Supreme Court if necessary. I don’t know whether this can be done at this juncture. Representations to Michael Gove, the Lord Chancellor, might produce something? It seems to me that there are two general grounds: 1) that an injustice has been done to an individual citizen at the hands of its government. 2) that the unlawful act – cited in the 2006 Statutory Instrument, and relied upon in the WAO report of January 2014- and all events flowing from it have inevitably had the effect that the Statutory Instrument was to designed to prevent. The indemnification by the County Council of claims and counterclaims for defamation made by officers may/will have the effect of inhibiting constituents from criticising their elected representatives and/or their officers. In future many people will shy away from criticism of local authorities believing that they risk losing their home and belongings in expensive and protracted litigation; with Jacqui proving the exception in soldiering on regardless of the consequences. Democracy is impoverished as a result. The unlawful act by the County Council is contrary to constitutional law and an affront to the supremacy of parliament in riding roughshod over the statutory instrument. Such constitutional law is higher law and should have been given precedence over the nitty gritty of the defamation litigation between the parties, which may not have been so clear cut as the constitutional issues. You can’t have a representative democracy if you allow governments (local or national) to use public money to gag its citizens. Such an abuse of power would sit more comfortably with Fascism.I dare say that there are various detailed submissions that could be made on both counts. Jacqui has illustrated some of the case precedents which might be helpful in terms of consequences emanating from the unlawful act. As Denning says: something cannot be founded on nothing. Had the County Council not acted unlawfully, as the Welsh Audit Office determined and/or duplicitously as Sian Caiach has suggested - in that the CEO’s action was as proxy for the Council - then none of the events flowing from this unlawful act would have occurred and Jacqui would not be suffering enforcement proceedings now.On the fundamental issue of constitutional law I think it would be well worth instructing counsel (someone expert in this field of law) to review the case and explore possibilities for further action. I think it is a mistake for Jacqui to rule out Redhead’s suggestion of establishing a legal fund for this purpose. One website worth looking at in this regard is: https://www.crowdjustice.co.uk/

Anon (15 February @ 19.34) makes two points, the second being that the indemnity did not kick in because Mark James won in court. Technically, perhaps, but it seems that the County Council footed the chief executive's legal bills anyway, and liberal use of Council resources was made during the case. Quite a number of council staff travelled to London and sat observing proceedings during the trial. These included then then acting Head of Law and the manager of the council's press office. The council's limo was also pressed into service to ferry Mr James and his party to Swansea railway station, from whence they travelled First Class to London.

It won't have been cheap to have Mrs Rees Jones (the council's head of law) in court day in, day out, scribbling notes. Who paid for Debbie Williams (press office manager) to go the High Court?

One of the unfinished pieces of business is what the council is going to do about the very considerable costs it incurred. In reality, it will have to write off something like £250,000.

The indemnity may not have been triggered technically, but the end result was exactly the same as if it had.

On the second point, Anon is wrong to say that Labour was kicked out because it rejected Mark James's application for redundancy. Rumours abound about what went on behind closed doors while that hot potato was being discussed, but it was clear that there would have been a massive public outcry if he had been paid off, and it is said that it would have cost the council around £450,000 to get rid of him.

There is little doubt that the Independents would happily have shelled out, and there were even voices from Meryl-land that the council should have given him an even bigger payout - not because they wanted to get rid of him, but because they felt he deserved it. Faced with the electoral fallout and more than likely pressure from Labour's HQ in Cardiff, Kevin Madge eventually rejected the application, issuing a press release expressing his delight that Mark James would, after all, be staying with us.

Labour lost power not because it rejected Mark James's demands, but because it ditched the incompetent Kevin Madge. As soon as Meryl, Mark and Pam realised that they had lost their puppet, Labour found itself in opposition.

I think we have to remember that the council were named as co-defendants in the original action, which certain explains the presence of the acting Head of Legal... Quite why the press manager was incapable of managing the press from their own desk is something of a mystery though...

For me, the smoking gun is whether or not council resources were used to support Mark Jame's (personal) counterclaim. Sian's information about events shows what a farce this is - we have a council that seems to have knowingly gone against the rules...

One burning question I would have is what happened in terms of Mark James' fees. Did he pay them personally, or were they paid for out of the public purse. Someone needs to ask a direct question on that one...

At the end of the day though, we are left with a HUGE injustice in which a woman who has diligently served her local community has now been ruined financially for the very same.

Found this https://www.crowdjustice.co.uk/how-it-works/ on Twitter @CrowdJustice I've retweeted some cases they are helping fund on @JenGwenBrown seems pretty good as the money goes to the law firm acting/advising you once the sum initially needed is reached as only then the card donations are cashed. Good luck with whatever you decide to do Jacqui! Looks like lots of your followers are behind you!

Just to say that crowdfunding can be surprisingly productive: here in Barnet library campaigners raised money for initial legal costs to challenge cuts proposals in a matter of hours, which was quite incredible. With the right publicity, this may well be a useful option to consider.

Its not only him if you cross . Certain cllrs cannot take it if you see through them and say NO to them its at your own peril it seems ! KNOWN Bullies who lie to bring other innocent parties down . They must have thier own way always . But this time the truth will hopefully come out very soon . Its about time they stopped getting thier own way for self power and slander false accusations and harassment with assault .

Whatever the merits of the libel case, it is unconscionable for a wealthy and privileged public servant to pursue his "pound of flesh" against an ordinary citizen of modest means in this vindictive way. If Mr James is a Christian, as has been suggested, his understanding of Christ's teachings is not mine. It seems unlikely that Mr James is going to be shamed into doing the right thing, so I too would support crowdfunding as a means of showing my contempt for this man.

'The Claimant is a housewife, mother and amateur blogger. The defendants are a council and a chief executive. It is literally state versus citizen. In a large part, the origins of the entire case derive from the issue of getting ones voice heard at all'

'In light of the evidence, the allegations of perverting the course of justice are unsustainable. This is the most serious allegation and the Claimant deserves to have her reputation vindicated...Mr Davies' evidence was incoherent, confused and contradicted [his] statements given at the time...in short, Mr Davies' evidence of what happened has completely changed and he cannot be relied on'

(From closing submission for the claimant at trial, February 2013)

...In August 2016, following a very belated (three years later) complaint to the police by Mark James that I perverted the course of justice, the investigation was dropped as there was no evidence.

There never was going to be any evidence as I told the truth, on oath, at the time.